Abela v. Martin

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 22, 2003
• Docket: 00-2430
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Abela v. Martin No. 00-2430 ELECTRONIC CITATION: 2003 FED App. 0374P (6th Cir.) File Name: 03a0374p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: James Sterling Lawrence, Detroit, Michigan, for FOR THE SIXTH CIRCUIT Appellant. William C. Campbell, OFFICE OF THE _________________ ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: James Sterling Lawrence, Detroit, Michigan, KEVIN MARK ABELA , X for Appellant. William C. Campbell, OFFICE OF THE Petitioner-Appellant, - ATTORNEY GENERAL, Lansing, Michigan, for Appellee. - - No. 00-2430 MARTIN, J., delivered the opinion of the court, in which v. - DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ., > joined. SILER, J. (pp. 16-18), delivered a separate dissenting , opinion, in which BOGGS, C. J., BATCHELDER, WILLIAM MART IN , Director, - Michigan Department of GIBBONS, and ROGERS, JJ., joined. - Corrections, - _________________ Respondent-Appellee. - - OPINION N _________________ Appeal from the United States District Court for the Eastern District of Michigan at Detroit. BOYCE F. MARTIN, JR., Circuit Judge. This action No. 99-72095—Robert H. Cleland, District Judge. arises from a Michigan manslaughter conviction and subsequent petition for a writ of habeas corpus pursuant to 28 Argued: March 26, 2003 U.S.C. § 2254. The district court found the habeas petition timely filed but denied it on the merits. Kevin Mark Abela Decided and Filed: October 22, 2003 appealed that denial. A panel of this court heard argument in this case, but it declined to reach the merits. The panel held Before: BOGGS, Chief Circuit Judge; MARTIN, SILER, that under this court’s rule in Isham v. Randle, 226 F.3d 691 BATCHELDER, DAUGHTREY, MOORE, COLE, (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001), Abela’s CLAY, GILMAN, GIBBONS, and ROGERS, Circuit petition was not timely because the statue of limitations was Judges. not tolled by Abela’s petition for writ of certiorari from the United States Supreme Court following post-conviction litigation in state court. The panel held that Abela’s habeas petition was barred by the statute of limitations set forth in 28 U.S.C. § 2244(d)(1). A majority of the active judges of this court having agreed to rehear the case en banc, we now hold that Abela’s petition was timely filed.

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Abela was convicted by a jury of voluntary manslaughter December 28, 2000, the district court denied Abela’s motion and carrying a concealed weapon on July 24, 1991. He was for a certificate of appealability. sentenced to a term of seven to fifteen years for voluntary manslaughter and a concurrent sentence of forty months to Abela appealed his denial of the motion to this court. We five years for carrying a concealed weapon. granted his certificate of appealability on the issues before us on April 20, 2001. Abela appealed his conviction on February 17, 1992, by raising three issues in the Michigan Court of Appeals. The Between August 20, 1996, and May 28, 1998, Abela sought Michigan Court of Appeals affirmed Abela’s conviction and state collateral relief in the Michigan trial, appellate, and high sentence in an unpublished disposition. People v. Abela, No. courts. The limitations period was clearly tolled during this 144005 (Mich. Ct. App. July 22, 1994). The Michigan period because Abela’s state collateral relief motions were Supreme Court denied Abela’s delayed application for leave pending in the various state courts. See Carey v. Saffold, 536 to appeal these issues. People v. Abela, No. 100783 (Mich. U.S. 214, 220 (2002). In Carey, the Court held that “until the Mar. 31, 1995). application has achieved final resolution through the State's post-conviction procedures, by definition it remains On August 20, 1996, Abela filed a motion for relief from ‘pending.’” Id. Thus, the key issue before us today is judgment in the Oakland County Circuit Court, raising six whether the one-year statute of limitations applicable to claims. The motion was denied “for lack of merit on the federal habeas corpus petitions is also tolled during the period grounds presented.” People v. Abela, No. 90-101083 in which a petitioner may seek, and the Supreme Court (Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the considers whether to grant, certiorari review of the denial of same six issues on appeal to the Michigan Court of Appeals, the petitioner’s state collateral relief motion. which also denied leave to appeal and a motion to remand. People v. Abela, No. 200930 (Mich. Ct. App. July 22, 1997). Title 28 U.S.C. § 2244(d)(1) provides a one-year period of On August 9, 1997, Abela again raised these six issues in his limitations for people “in custody pursuant to the judgment of delayed application for leave to appeal to the Michigan a State court” to file an application for a writ of habeas Supreme Court, which likewise denied his petition. People corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of v. Abela, No. 110260 (Mich. May 28, 1998). On August 3, this one-year period as follows: “The time during which a 1998, Abela filed a petition for certiorari with the United properly filed application for State post-conviction or other States Supreme Court, which was denied on October 19, collateral review with respect to the pertinent judgment or 1998. Abela v. Michigan, 525 U.S. 948 (1998). claim is pending shall not be counted toward any period of limitation under this subsection.” On April 26, 1999, before his parole term had ended, Abela sought a writ of habeas corpus pursuant to section 2254, For prisoners whose convictions became final prior to raising the same claims as in his motion for relief from April 24, 1996, the effective date of the Anti-Terrorism and judgment (except for his claim regarding the trial court’s Effective Death Penalty Act, the one-year limitations period decision to reconsider its dismissal of the concealed weapon runs against them as of that date. Austin v. Mitchell, 200 F.3d charge). The district court issued a memorandum opinion and 391, 393 (6th Cir. 1999). Abela’s judgment of conviction denied the petition for habeas relief on October 31, 2000. On became final prior to April 24, 1996, so his one-year limitations period began running on that date. No. 00-2430 Abela v. Martin 5 6 Abela v. Martin No. 00-2430

The Supreme Court recently concluded that a federal seeking certiorari in the United States Supreme Court is not habeas corpus petition does not constitute “State post- a mandatory part of state court review, as it is not a conviction or other collateral review” in order to toll the one- prerequisite to pursuing habeas corpus. Fay v. Noia, 372 U.S. year limitations period pursuant to section 2244(d)(2). 391, 435 (1963). Finally, we concluded that differences in Duncan v. Walker, 533 U.S. 167, 182 (2001). Significantly, section 2244(d)(1)(A) and section 2244(d)(2) suggest that for our purposes, the Court construed the phrase “State post- Congress did not intend section 2244(d)(2) tolling to apply to conviction or other collateral review” to mean “State post- potential Supreme Court review. Isham, 226 F.3d at 695. conviction [review]” and “other State collateral review.” Id. Specifically, section 2244(d)(1)(A) provides that the one-year at 175-76. Accordingly, the section 2241(d)(1) limitations limitations period begins to run after “the date on which the period is not tolled while federal habeas corpus proceedings judgment became final by the conclusion of direct review or are pending, because federal habeas proceedings are neither the expiration of the time for seeking such review,” whereas “State post-conviction” nor “other State collateral review.” Congress neglected to use similar language in section Id. at 181-82. Thus, the more narrow question presented here 2244(d)(2). Id. is whether a petition for writ of certiorari to the Supreme Court may constitute a “properly filed” and “pending” The Supreme Court has decided cases since Isham that cast application for “State post-conviction [review]” or “other that case in a different light. As to Isham’s first rationale, State collateral review” so as to toll the section 2244(d)(1) Duncan confirmed our interpretation that the word “State” in limitation period. section 2244(d)(2) modifies “post-conviction or other collateral relief.” 533 U.S. at 175-76. As to Isham’s second This Court’s pre-Duncan decision in Isham v. Randle, 226 rationale, that petitioning for certiorari on the underlying F.3d 691 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001), conviction is not required in order to seek habeas corpus upon which the panel opinion relied, dealt with the situation review, the Supreme Court’s recent decision in Clay v. United where a petitioner could have sought, but did not seek, States, 123 S. Ct. 1072, 1075, __ U.S. __ (2003), offers an certiorari review of his Ohio collateral review motion. We analogy for the question before us. In that case, the Court held that “the one year limitations period is not tolled during determined that a federal criminal conviction becomes final, the ninety days in which defendant could have petitioned the for the purposes of calculating the one-year time period in Supreme Court for a writ of certiorari . . . .” Id. at 692. which to move to vacate pursuant to 28 U.S.C. § 2255, when the time expires for filing a petition for certiorari to contest First, we reasoned, based on the statute’s plain language, the federal appellate court’s affirmance of conviction. Id. at the word “State” in section 2244(d)(2) modifies “post- 1075. The Court discussed the meaning of finality, id. at conviction or other collateral relief.” Id. at 695. This court 1076: concluded that “[a] petition for certiorari to the United States Supreme Court is not ‘state post-conviction relief.’ Neither Here, the relevant context is postconviction relief, a is such a petition ‘other state collateral relief.’” Id. Thus, we context in which finality has a long-recognized, clear decided, as had the Tenth Circuit, that “a petition for writ of meaning: Finality attaches when this Court affirms a certiorari to the United States Supreme Court is ‘simply not conviction on the merits on direct review or denies a an application for state review of any kind.’” Id. (citing Rhine petition for a writ of certiorari, or when the time for v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999)). We also filing a certiorari petition expires. See, e.g., Caspari v. reasoned that our holding was bolstered by the fact that Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d No. 00-2430 Abela v. Martin 7 8 Abela v. Martin No. 00-2430

236 (1994); Griffith v. Kentucky, 479 U.S. 314, 321, n. 6, 2001). Other circuits, relying on Rhine, have reached the 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Barefoot v. same conclusion with respect to petitioners who had not Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d actually sought certiorari review—the scenario presented in 1090 (1983); United States v. Johnson, 457 U.S. 537, Isham. See Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir. 542, n. 8, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); 2001); Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001); Linkletter v. Walker, 381 U.S. 618, 622, n. 5, 85 S.Ct. Coates v. Byrd, 211 F.3d 1225, 1227(11th Cir. 2000); Ott v. 1731, 14 L.Ed.2d 601 (1965). Johnson, 192 F.3d 510, 513 (5th Cir. 1999); see also Isham, 226 F.3d 691. Further, the Court noted that “[t]he Courts of Appeals have uniformly interpreted ‘direct review’ in § 2244(d)(1)(A) to Until recently the Third Circuit distinguished situations encompass review of a state conviction by this Court.” Clay, where certiorari is actually sought from those where it is not. 123 S. Ct. at 1077, n.3 (citations omitted). The reasoning In particular, in 1999, the Third Circuit concluded that the underlying the Court’s decision in Clay is analogous to the limitations period was tolled during the period where a situation before us. The Supreme Court’s direct review of a petitioner actually sought certiorari. See Morris v. Horn, 187 federal criminal conviction is not identical to its review of a F.3d 333, 336-37 (3d Cir. 1999). However, subsequent to the state habeas petition, but in each situation the decision of the decision in Morris, the Third Circuit concluded that the federal appellate court and the highest court in the state, ninety-day period for seeking certiorari review in the respectively, is not final, if certiorari is sought, until the Supreme Court should not be considered to toll the limitations Supreme Court denies certiorari, and, if certiorari is not period under section 2244(d)(2) where the petitioner has not sought, until the period for seeking certiorari expires. actually sought certiorari. See Nara v. Frank, 264 F.3d 310, 318 & n.4 (3d Cir. 2001); Stokes v. Dist. Attorney of the Finally, as to Isham’s third rationale, highlighting the County of Phila., 247 F.3d 539 (3rd Cir. 2001). This difference in language between sections 2244(d)(1)(A) and distinction relied on the use of the word “pending” in section 2244(d)(2) as supportive of the narrow reading of the latter, 2244(d)(2), concluding that where no petition for certiorari is the Supreme Court recently said, “‘The . . . presumption--that actually filed, nothing can be “pending” under section the presence of a phrase in one provision and its absence in 2244(d)(2). Nara, 264 F.3d at 318. Recently, however, the another reveals Congress’[s] design--grows weaker with each Third Circuit abandoned this distinction altogether, joining difference in the formulation of the provisions under the majority of the circuits. See Miller v. Dragovich, 311 inspection.’” Clay, 123 S. Ct. at 1079 (citing Columbus v. F.3d 574 (3d Cir. 2002). The court said, “To avoid Duncan Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435-36 we would have to hold that Congress intended to distinguish (2002)). between the exercise of Supreme Court certiorari jurisdiction and federal habeas corpus jurisdiction in enacting section Isham, nevertheless, is in line with the majority of our sister 2244(d)(2).” Id. at 579. circuits. The Tenth Circuit concluded, using broad language, that section 2244(d)(2) did not toll the limitations period The Second and Seventh Circuits adopted a narrow version where the petitioner had actually sought certiorari in the of the approach taken in Isham, Coates, Ott, Miller, and Supreme Court. Rhine, 182 F.3d at 1156. The Fourth Circuit Rhine, limiting their holdings to a rule that the period during agreed where, as here, the petitioner had actually sought which certiorari may be sought cannot toll the limitations certiorari. Crawley v. Catoe, 257 F.3d 395, 399-400 (4th Cir. period where certiorari is not actually sought. See Gutierrez No. 00-2430 Abela v. Martin 9 10 Abela v. Martin No. 00-2430

v. Schomig, 233 F.3d 490, 491-92 (7th Cir. 2000); Smaldone issues reviewable in the United States Supreme Court, so v. Senkowski, 273 F.3d 133, 137-38 (2d Cir. 2001). The can state habeas proceedings. A state criminal proceeding Seventh Circuit focused on whether there was any “properly . . . is still “pending” even though the state courts are filed” application where the petitioner had not sought finished with it, until any petition filed is finally decided. certiorari to the United States Supreme Court, concluding that Similarly, if there is a certiorari petition pending to where nothing had been filed, nothing could be “properly review the validity of the state’s denial of such an filed” under section 2244(d)(2). Gutierrez, 233 F.3d at 492. application for state post-conviction review, the The Seventh Circuit also concluded that where no petition for application is still “pending”--that is, not finally decided. certiorari had been filed, nothing could be “pending” under The application does not thereby stop being a state section 2244(d)(2). Id. Ultimately, however, the Seventh habeas proceeding or turn into a federal rather than a Circuit declined to address whether “State post-conviction” state application; it is just not finally decided yet. review or “other state collateral review” may include a “properly filed,” “pending” petition for certiorari to the We agree. In a slightly different context, the Supreme Court, United States Supreme Court. Id. The Second Circuit, in Carey v. Saffold, discussed the word “pending”: “The likewise faced with a situation where the petitioner had not dictionary defines ‘pending’ (when used as an adjective) as sought certiorari, adopted the reasoning of the Seventh ‘in continuance’ or ‘not yet decided.’ It similarly defines the Circuit, stating, “Our holding is limited to the facts of this term (when used as a preposition) as ‘through the period of case, and we do not reach the questions that would have been continuance . . . of,’ ‘until the . . . completion of.’” 536 U.S. raised if a certiorari petition had been properly filed.” at 219 (citing Webster’s Third New International Dictionary Smaldone, 273 F.3d at 138. The Second and Seventh Circuits 1669 (1993)). We believe that a petition for certiorari from a continue to distinguish between situations in which a petition state court’s denial of an application for habeas corpus for certiorari review of the denial of state habeas relief is necessitates that the application is still pending, because it is actually sought and those cases where it is not. “‘in continuance’ or ‘not yet decided.’” Id. The focus of section 2244(d)(2) is not on the court in which the application Although we find this distinction no longer tenable, we take is pending but on the application itself. As long as the each situation in turn. First, as to the question presented here, petition for certiorari involves an application for state court where a petition for certiorari was actually filed, we find relief, section 2244(d)(2) requires that the statute of instructive the reasoning of the dissent in White v. Klitzkie, limitations be tolled. The court where the application is 281 F.3d 920 (9th Cir. 2002). In dissent in White, Judge pending is irrelevant. While Duncan clarified that “State” Berzon reasons that “[t]he statute surely tolls only where there modifies “review,” it nowhere asserts that “State” also is a ‘properly filed application for State post-conviction or modifies “pending.” other collateral review.’ But the question is not whether White’s application fits this description . . . but whether that Judge Berzon’s dissent in White continues, 281 F.3d. at application could still be ‘pending’ once the state courts are 926-27: finished with it.” Id. at 926 (Berzon, J., dissenting). She goes on to say, id., Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), does not suggest a different [W]hile the application is one for State post- conviction interpretation of § 2244(d)(2). That case based its relief, just as state criminal proceedings can raise federal holding that a federal habeas petition does not toll the No. 00-2430 Abela v. Martin 11 12 Abela v. Martin No. 00-2430

limitations period on the ground “that an application for many petitioners will be put in this position, because the federal habeas corpus review is not an ‘application for federal habeas court could simply stay the habeas motion State post-conviction or other collateral review’ within pending the Supreme Court’s resolution of the certiorari the meaning of 28 U.S.C. § 2244(d)(2).” Id. at 2129. But petition, see Miller, 311 F.3d at 580-81, we do not believe it an application for state habeas review, as opposed to an is appropriate or necessary to read the federal statutes to application for federal habeas review, is “an application dictate such a rule. for State post-conviction review or other collateral review,” regardless of whether that application is being We now turn to the question directly at issue in Isham, considered on appeal by a state supreme court or by the although not presented here, whether or not the period for United State Supreme Court on certiorari. Thus, unlike filing certiorari tolls the statute of limitations where no the reading of § 2244(d)(2) rejected in Duncan, the petition is actually filed. Once a state supreme court has ruled interpretation I suggest gives full meaning to the word on a petitioner’s application for state post-conviction relief, “State,” but recognizes that the United States Supreme the petitioner has ninety days to decide whether to petition for Court . . . can consider state . . . cases when they raise a writ of certiorari. Sup. Ct. R. 13. Section 2244(d)(2) federal issues. Otherwise, what is the United States provides that the one-year statute of limitations is tolled while Supreme Court hearing when it considers a state habeas a properly filed application for state post-conviction relief is petition on certiorari? Not an application for federal “pending,” 28 U.S.C. § 2244(d)(2), but it offers no clue as to post-conviction or other collateral review. whether an application is “pending” during the ninety-day period for seeking Supreme Court review. If that We agree with Judge Berzon’s reasoning. determination depends on whether a petitioner ultimately applies for a writ of certiorari, then courts and litigants can Furthermore, to require a petitioner to file his petition never know whether the statute of limitations is running seeking federal habeas corpus relief before he has sought during the period following their state post-conviction review; certiorari to the Supreme Court does not promote the finality that determination will depend on events that are to happen of state court determinations and encourages the simultaneous down the road. filing of two actions seeking essentially the same relief. This disposition would also raise concerns about comity and Indeed, petitioners who are equally diligent may face exhaustion. If we chose to follow the panel decision in this drastically different fates. Imagine, for example, two state case, a prisoner could file his petition for writ of certiorari to inmates who file their petitions for state post-conviction relief the United States Supreme Court on the day the highest state after three hundred days in their limitation period have run. court denies him collateral relief, but if the United States Sixty-five days after their applications for state post- Supreme Court takes more than a year to decide his case, the conviction relief are denied, having passed through the prisoner will be required to file a federal habeas petition highest appellate court in the state, their limitations period before the Supreme Court had an opportunity to rule on his under section 2244(d)(1) will expire. On the seventieth day, motion for state collateral relief. We doubt that Congress each proceeds to another stage in the process: one files a intended, in the Anti-Terrorism and Effective Death Penalty petition for habeas corpus relief in federal district court, and Act, to force prisoners to choose between federal habeas relief because that petition is untimely, the petition is denied; the and seeking certiorari to the Supreme Court, or to do both other petitions for a writ of certiorari from the United States simultaneously. While as a practical matter it is unlikely that Supreme Court, and not only is the petition accepted for No. 00-2430 Abela v. Martin 13 14 Abela v. Martin No. 00-2430

filing, but also the petitioner still has sixty-five days left to period has expired, the argument goes, it is no longer file a habeas corpus petition after the petition for a writ of “pending” once the state court has actually issued an order. certiorari is denied. That is, the petition for writ of certiorari This argument overlooks the almost tautological point that a would have retroactively tolled the second petitioner’s case becomes “final” once it is no longer “pending”; they are limitations period, protecting his ability to seek section 2254 but two sides of the same coin. Moreover, in Carey, the relief. The first petitioner, who was equally diligent — and Supreme Court rejected the notion that a case is only who chose what is likely a more efficient route to federal “pending” for the purposes of section 2244(d)(2) until the habeas review — will be out of luck. Furthermore, a rule court issues its order. 536 U.S. at 219-20. The Court there limiting the tolling to only those habeas corpus petitioners concluded that an application for state post-conviction relief who actually file for certiorari would create a lock-in effect is pending even during the period between one state court’s for the prison inmate who prepares a certiorari petition for decision and the litigant’s appeal to the next level. sixty-nine days, but then changes tack on the seventieth day, Accordingly, “pending” should not be construed to refer only deciding that it would be wiser strategically to file the habeas to the time a court takes to evaluate a case at some stage of petition in the district court. Under the rule applied by a the post-conviction review process; “pending” also refers to majority of our sister circuits, the inmate has to file a the time allowed an inmate to file a certiorari petition protective certiorari petition in order to preserve the regardless of whether such filing actually occurs. opportunity to later file a habeas petition, generating an unnecessary and quite often futile hoop through which the A statute of limitations should be clear. At any given point, inmate must hop. Failure to file such a protective certiorari courts and litigants should be able to determine whether the petition because of a tactical change then retroactively limitations period has begun, is running, is tolled, or has obliterates the sixty-five days the inmate had left, even though expired; whether a limitations period is running should not the clock was not actually ticking during the sixty-nine days depend on events that happen only at a later date. Whether spent preparing the certiorari petition to the Supreme Court. the limitations period is tolled during the ninety days that a petitioner has to seek certiorari should not depend on whether It makes little sense to allow events that happen after a the petitioner actually decides to seek certiorari. limitations period appears to have expired to retroactively toll it, and the Supreme Court has explicitly rejected such a Because Clay explicitly holds that federal petitioners are to suggestion for collateral attacks by federal prisoners. In Clay, receive the benefit of the ninety-day certiorari period even the Supreme Court held that the limitations period for a when they seek no such relief, because Carey advances a section 2255 petition does not run during the ninety-day broad definition of when a petition for state relief is period for seeking certiorari, even when the petitioner “pending” under section 2244(d)(2), and because the contrary ultimately does not seek Supreme Court review. 123 S. Ct. at view leads to an unstable limitations scheme prone to 1075. The only possible basis for distinguishing the Court’s subsequent revision, we hold that under section 2244(d)(2), interpretation in Clay is that whereas there, the Court the statute of limitations is tolled from the filing of an determined that a case does not become “final” in the application for state post-conviction or other collateral relief postconviction context until the conclusion of the time for until the conclusion of the time for seeking Supreme Court seeking Supreme Court review, here, a court would be asked review of the state’s final judgment on that application to determine when an application is no longer “pending.” independent of whether the petitioner actually petitions the Although a case may not be “final” until the ninety-day Supreme Court to review the case. No. 00-2430 Abela v. Martin 15 16 Abela v. Martin No. 00-2430

For the foregoing reasons, we AFFIRM the judgment of the _______________ district court with respect to the timeliness of Abela’s habeas petition, and the case is otherwise returned to the original DISSENT panel for consideration on the merits. _______________

SILER, Circuit Judge, dissenting. The position espoused by the majority sounds good and provides an easy way to determine whether the one-year limitations period under 28 U.S.C. § 2244(d)(1) is tolled. However, it is a position which has been repudiated by all other Circuits which have interpreted this statute and is a stretch of the law. After all, “Our task is to construe what Congress has enacted. We begin, as always, with the language of the statute.” Duncan v. Walker, 533 U.S. 167, 172 (2001). As the majority correctly analyzes the issue, it is whether the time under 28 U.S.C. § 2244(d)(2) for tolling purposes also includes the time between the denial of petitioner’s state post-conviction claim and the denial of his petition for a writ of certiorari on that claim before the Supreme Court. The majority holds that this time is also included. We previously held in Isham v. Randle, 226 F.3d 691, 692 (6th Cir. 2000), cert. denied, 531 U.S. 1201 (2001), that the time was not included for tolling purposes when the petitioner did not seek certiorari review of his collateral attack. I would extend that holding from Isham to the present situation, where the petitioner did file for certiorari to the Supreme Court. In addition to refusing to apply Isham’s reasoning to circumstances in which the petitioner has filed for certiorari review following exhaustion of post-conviction relief, the majority of this court, while conceding that the issue is not properly before us, nonetheless suggests in dicta that Isham itself is not good law. Rather than casting doubt upon Isham, I would extend its holding to the present situation, in which the petitioner did file for certiorari to the Supreme Court. Thus, I would find that the time between May 28, 1998, when the Michigan Supreme Court denied leave on Abela’s motion for relief from judgment until October 19, 1998, when the Supreme Court denied certiorari, is not excludable time for No. 00-2430 Abela v. Martin 17 18 Abela v. Martin No. 00-2430

tolling under 28 U.S.C. § 2244(d)(2). The reasons are decisions in Clay v. United States, 123 S. Ct. 1072 (2003); explained herein. and Duncan, 533 U.S. at 167, do not affect our decision in Isham. As the majority explains, there is no Circuit authority in Abela’s favor. Morris v. Horn, 187 F.3d 333, 337 (3d Cir. More specifically, Duncan construed § 2244(d)(2) in the 1999), is the only case to hold that the statute of limitations is same way that Isham did, that is, that “State” modified both tolled under § 2244(d) during the pendency of a petition for “post-conviction” and “other collateral review.” Duncan, certiorari, following the denial of post-conviction relief. 533 U.S. at 172. Likewise, Clay followed the majority rule However, that case has been repudiated in Miller v. from the Circuits that § 2255 is interpreted to mean that “[A] Dragovich, 311 F.3d 574, 580 (3d Cir. 2002). The majority judgment of conviction becomes final when the time expires has recognized the plethora of authority in agreement with for filing a petition for certiorari contesting the appellate Isham and Miller. See, e.g, Bunney v. Mitchell, 241 F.3d court’s affirmation of the conviction.” Clay, 123 S. Ct. at 1151, 1155-56 (9th Cir.), withdrawn on other grounds, 249 1075. However, that case involved the issue of when the F.3d 1188 (9th Cir. 2001); Crawley v. Catoe, 257 F.3d 395, limitations began to run on a federal conviction, not a state 399-400 (4th Cir. 2001); Snow v. Ault, 238 F.3d 1033, 1035 collateral attack. And, although that decision states that “[t]he (8th Cir. 2001); Coates v. Byrd, 211 F.3d 1225, 1227 (11th Courts of Appeals have uniformly interpreted ‘direct review’ Cir. 2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); in § 2244(d)(1)(A) to encompass review of a state conviction Rhine v. Boone, 182 F.3d 1153, 1156 (10th Cir. 1999). by this Court,” id. at 1077 n.3, it never takes up the issue we are facing, the interpretation of § 2244(d)(2). The authority the majority here uses to justify its decision is from a dissent by Judge Berzon in White v. Klitzkie, 281 Therefore, I would continue to follow Isham in finding that F.3d 920, 926 (9th Cir. 2002) (Berzon, J., dissenting). But “the denial of state post-conviction relief becomes final. . . the majority in that case very clearly held that “[a] petition for after a decision by the state’s highest court,” id. at 695, and I a writ of certiorari to the United States Supreme Court is would reverse the judgment of the district court finding simply not an application for state review.” Id. at 924. Abela’s habeas corpus petition was timely filed. All of these cases follow the same basic reasoning. That is, they hold that the time under which a petition for certiorari is or could be filed is not considered the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). I would adopt that reasoning also. The plain text of the statute does not suggest otherwise. Obviously the pragmatic approach has its merits, because it promotes an efficient administration of habeas corpus cases, but if Congress sees a need to change the system, it may amend the statute just as it has in the past. The recent